4k-2 | AGREEMENT TO PERMIT CONTINUED PUBLIC USE OF PRIVATE ALLEY

ATTACHMENT 2

NORTH CAROLINA

ORANGE COUNTY

AGREEMENT TO PERMIT CONTINUED PUBLIC USE OF PRIVATE ALLEY

This Agreement is made and entered into this the ___ day of ____, 2008, by and between the Town of Chapel Hill, a North Carolina Municipal Corporation, 405 Martin Luther King Jr. Boulevard, Chapel Hill, NC 27514 (hereinafter the “Town”), George H. Draper IV and Frances M. Strowd (hereinafter “Draper”) and Munch Family Properties LLC (hereinafter “Munch”) for the purpose of providing for the long-term improvement, maintenance and public use of a certain private alley in Chapel Hill, North Carolina.

WITNESSETH:

WHEREAS, Draper is the owner of property on East Franklin Street in Chapel Hill identified as Orange County TMBL 7.80A..17, PIN 9788379660; and,

WHEREAS Munch is the owner of property on East Franklin Street in Chapel Hill identified as Orange County TMBL 7.80A..18, PIN 9788379517; and

WHEREAS, these two properties include a certain private alley running perpendicular to Franklin and Rosemary Streets as more particularly shown on the plat attached here to as Exhibit 1 and known as “Amber Alley”; and,

WHEREAS, Amber Alley provides access to private businesses on either side of said Alley; and,

WHEREAS, Amber Alley provides access from Franklin Street to a public alley running roughly parallel to Franklin Street as shown on Exhibit 1 and further provides access to and from the James C. Wallace Parking Plaza (the Plaza), owned by the Town; and,

WHEREAS, the Town, Draper and Munch agree that the continued provision of public access to and through Amber Alley is of benefit to the owners of adjacent properties and to the operators of businesses along the Alley; and,

WHEREAS, the Town, Draper and Munch agree that the continued provision of public access through Amber Alley serves the public purpose of providing access to the Plaza and an alternate pedestrian route from Franklin Street to Rosemary Street; and,

WHEREAS, the Town, Draper and Munch agree that certain physical improvements to the Alley are needed in order to continue to provide for reasonable access to private properties in the Alley and to allow public use of the Alley.

NOW, THERFORE, in consideration of the above-stated premises and the terms and conditions recited below, the Town, Draper and Munch hereby agree as follows:

1. The Town shall make a one time payment in the amount of $59,879 for the purpose of making the following improvements to Amber Alley:

1. Removal of existing alley floor surface.

2. Removal of existing back stairs.

3. Removal of the usable part of the front stairs, from the Munch building to where they go under the upper stairs.

4. Inspect the drain line and repair or replace if necessary.

5. Level the alley with proper slope for drainage, which will lower the back end of the alley.

6. Pour concrete steps, stained to match the color chosen for the alley floor, with 2 or 3 additional steps at the bottom of the back stairs.

7. Install and paint handrails for the stairs.

8. Resurface the alley floor with concrete, stained and stamped to look like cobblestone or brick.

9. Install metal signage at the entries to Amber Alley.

The final design and construction shall be subject to applicable Town procedures for inspection by the Manager or his designee.

2. The Town does not obligate itself to provide any further financial contribution for the improvement or maintenance of said Alley. In addition, nothing in this Agreement shall be construed as constituting an affirmative action by the Town to accept the Alley as a public alley. It is the intent of the parties that the Alley shall remain a private alley owed and controlled by Draper and Munch.

3. Draper and Munch shall use the funds provided by the Town, together with additional funding from other sources, to improve and maintain Amber Alley in accordance with a plan for said improvements developed and approved by the parties to this Agreement.

4. Upon approval of the plan and completion of the improvements to Amber Alley described in said plan, Amber Alley shall be remain open and available for the public to pedestrian, non-vehicular travel between Franklin Street and the public alley adjacent to the Plaza for a minimum of 30 years. The parties agree that public access and use of said Alley may be restricted, when necessary for the purpose of making repairs, during emergencies and at other limited times requested by Draper and Munch and approved by the Town Manager of the Town.

5. The parties acknowledge that the Town will not be responsible for maintenance of the Alley and will not have any liability arising from bodily injury, including death or property damage to any person or persons using said Alley, except to the extent same are caused by the negligence or misconduct of the Town. Notwithstanding anything to the contrary herein, nothing in this Agreement shall be construed as an agreement on the part of Draper and/or Munch to indemnify or hold the Town and its officers, agents and employees harmless from any loss, liability, claims or expense arising from the use of the Alley by any person or persons.

6. During the term of this Agreement, Draper and Munch shall each maintain valid liability insurance coverage for the public’s use of the Alley. The required coverage limits are One Million Dollars ($1,000,000.00) per occurrence for Comprehensive General Liability. The Town shall be named as an additional insured on said policies.

7. The Town will monitor the Alley as part of its standard police patrol in the downtown area of Chapel Hill but neither assumes or accepts any special duty to monitor or patrol the Alley or adjacent properties by virtue of its payment for the improvements or any other the terms of this Agreement.

8. Draper and Munch shall be responsible for complying with all requirements of federal and state law or local building codes that may be applicable to said Alley and any changes or improvements therein, including regulations related to accessibility and signage.

9. Nothing in this Agreement shall be construed to change the status of this Alley as a private alley. The Town does not accept or assume any responsibility to provide any maintenance or cleaning services to the Alley.

10. Nothing in this Agreement shall be construed as affecting any claim of right by persons not a party to this Agreement to use the Alley as a result of an easement by prescription or any other legal theory.

11. This Agreement shall automatically terminate 30 years following the completion of construction of the improvements described in paragraph 1 above. Thereafter neither party shall have any further obligation to the other hereunder.

IN WITNESS WHEREOF, the parties hereunto cause this Agreement to be executed in their respective names as of the date first above written.

________________ _____________________

George H. Draper IV Witness:

________________ _____________________

Frances M. Strowd Witness:

Munch Family Properties LLC

By: __________________ ______________________

Mary Stockwell, Manager Witness:

Town of Chapel Hill

By: ____________________